Eric Holder Should Be Careful of What He Wishes For

Barack Obama offered us the promise of a post-racial presidency. So far it is not panning out as advertised. Attorney General Eric Holder's "cowards" speech didn't go over well with commentators at either end of the political spectrum. Bill Kristol on Fox News Sunday had this to say:

Eric Holder is the attorney general of the United States. This was a speech given in his official capacity at the Justice Department. It is a total disgrace -- a total disgrace -- for the attorney general of the United States to stand up there and say in his formal prepared remarks that this is a nation of cowards. What could he be thinking?

I mean, he really should be forced to apologize. He, in fact, has gotten a total walk. Phil Gramm was denounced. John McCain had to say, "Oh, my God, my informal adviser said we were whining too much."

Eric Holder, who showed precious little bravery in standing up to Clinton on a pardon for the scoundrel Marc Rich, is wrong. We have just inaugurated a black president who installed a black attorney general.

In the middle of all the Heimlich maneuvers required now -- for the economy, Iran, Pakistan, Afghanistan, health care, the environment, and education -- we don't need a Jackson/Sharpton-style lecture on race. Barack Obama's election was supposed to get us past that.

It remains a bit of a mystery as to what type of discussion Holder wants us to have. Does he really want whites and African Americans arguing in coffee shops and loading docks as to why the rate of out-of-wedlock birth rates for African Americans is so high? Does he intend to have college admissions officers candidly discuss the degree to which they employ race-based preferences at elite universities? Probably not.

There is more to quibble with than the specifics of Holder's language, however. It is apparent from even a cursory review of racial politics in the last few decades that the premise of the speech -- that we have not spent enough time or energy dealing with race in this country -- is seriously flawed. Indeed, in the name of accounting for our past racial sins and correcting ongoing inequality we have become a country immersed in racial discussion and are awash in race-based preferences in employment, university admissions, and government contracting.

Nowhere is this phenomenon more evident than in the private sector workplace, where this issue is often subsumed under the buzz word of "diversity." Most Fortune 500 companies have policies, personnel, and resources devoted to instructing and cajoling employees to promote and hire racial minorities. But this goes far beyond merely prohibiting illegal discrimination.

Roger Clegg, president of the Center for Equal Opportunity, in testimony before the U.S. Equal Employment Opportunity Commission in 2006 (updated in 2007), observed that the obsession with trying to rebalance the racial composition of American workplaces has consumed private entities for years. He reported:

There is a significant amount of discrimination taking place now in the name of diversity. Eight out of ten business executives said that affirmative-action programs had resulted in them giving jobs and promotions to applicants who were less qualified than others. ... HR Magazine reported in 1998 that "executive recruiters confirm that more and more companies are placing orders specifically for females and ethnic minorities." The Center for Equal Opportunity, too, has found that frequently recruiters brag about their ability to find diversity hires for companies.

We are not talking about perfectly legal and appropriate efforts simply to recruit broadly, prevent bias in the workplace, or root out illegal discrimination. What is at issue here is the institutionalization of efforts -- in the name of diversity -- to recruit, hire, and promote minority employees who are less qualified than their peers in order to boost numbers of minorities in the workplace. In many large and medium-sized companies, executives are judged and compensated specifically on fulfilling diversity goals, which are thinly disguised quotas based on illegal racial and ethnic preferences. Clegg documents that this is par for the course at major employers including Wal-Mart, Kodak, Cisco Systems, BellSouth, Bank of America, and NBC. These are just a few of the country's employers which reward and penalize managers based on how they rate in hiring and promoting minorities.

And these diversity programs are often accompanied by elaborate diversity "instruction," which directs employees to "celebrate diversity" and increase the number of minority employees (specifically those in management positions). Employees are told that hiring and promoting minority employees because they are minorities are good and beneficial endeavors.

Elaborate justifications (e.g., improved "performance" for diverse companies, the ability to market the employer's products in minority communities) have been concocted for these diversity programs, without much factual justification. But at their core many of these efforts are illegal and spawn division, not racial unity. Courts have repeatedly refused to accept a "diversity" rationale or exception to Title VII of the Civil Rights Act (and comparable state statutes) prohibiting employers from discriminating on the basis of race, color, religion, sex, or national origin in hiring, firing, or "otherwise ... with respect to compensation, terms, conditions, or privileges of employment."

In his follow-up testimony in 2007, Clegg reported that none of the companies he cited denied the existence of their "diversity" programs or took issue with the characterization of their efforts. The question remains: How do these practices go on, when in fact it is illegal under Title VII and analagous state statutes for employers to hire or promote based on race or ethnicity? Clegg explained in a telephone interview that two things are at play.

Clegg says, "One, is that there is strictly a cold blooded legal calculation that they'll have fewer problems if they ‘celebrate' diversity' than if they operate in a colorblind manner. They see obvious advantages to having the numbers ‘right.'" Both in defending litigation and in staving off consumer-based protests and boycotts, Clegg explains that "this is the deal they have made." Few if any lawsuits are filed by non-minority employees, the EEOC shies away from attacking pro-diversity programs, and even conservative public interest legal groups often prefer not to take on private businesses. The risk then is low that they will face adverse consequences by adopting "diversity" programs and policies. And if they do adopt diversity plans, they might just hike the number of minority employees, help fend off discrimination suits, and enjoy the plaudits of liberal civil rights organizations. If it weren't illegal, this would be an incontrovertibly "smart" business decision.

Secondly, these "diversity" programs exist in part because non-lawyers and even misinformed lawyers have come to believe that discrimination in the name of diversity is acceptable. "The conventional wisdom is that this is okay," says Clegg. Moreover, once personnel and resources (whole departments in some cases) are devoted to diversity programs, they take on the air of respectability and legitimacy.

So in this regard, Holder may have a point. Perhaps it is time to start talking more about all of this. Employees who observe discrimination masking as diversity would be better served to speak up and not remain mute in the face of diversity indoctrination and policies which reward hiring by race and ethnicity. As Clegg says, employees "shouldn't accept this. They should complain about it." Skirting or outright violation of the law for some ill-conceived notion of diversity is, Clegg reminds us, "all bad stuff." And in these economic times it may in fact have significant adverse consequences for non-minority employees who may not enjoy a plethora of employment or promotional opportunities.

Holder, it seems, may have unintentionally stumbled on a truth lurking in many workplaces in America. Employees, by and large, have passively accepted the institutionalization of "diversity," which is nothing more than disguised discrimination. They are reluctant to speak up both because of fear of the social confrontation and of potential adverse employment consequences. But they should not be afraid to discuss, protest, and confront racism in the workplace -- however it is dressed up.

If more employees begin to do just that as a result of Holder's speech, it would have contributed (albeit unintentionally) to the further reduction of discrimination in America. And that would be a very good thing indeed.